By Gábor Halmai.
The recent deviations from the shared values of constitutionalism towards a kind of “populist, illiberal constitutionalism” in East-Central Europe raise the theoretical questions: are populism and illiberalism what the leaders of these backsliding states proud of, reconcilable with constitutionalism? I shall concentrate on a particular version of populism, which is nationalist and illiberal, and mainly present in Hungary and Poland, and in other countries of the region. Most are also members of the European Union, a valued community based on liberal democratic constitutionalism[1]. The arguments set forth below about East-Central European populist constitutionalism in this paper do not necessarily apply to other parts of Europe (Greece and Spain), Latin-America (Bolivia), or the US, where populism has a different character, and its relationship to constitutionalism is distinct from the Hungarian or the Polish variant.
The relationship between populism and constitutionalism has proven difficult to define. From the large range of definitions of populism, I use the one provided by Mudde and Kaltwasser, who define populism as a “thin-centered ideology that considers society to be ultimately separated in two homogeneous and antagonistic camps, ‘the pure people’ and the ‘corrupt elite,’ and which argues that politics should be an expression of the ‘volonté générale’ (general will) of the people.”
Mudde and Kaltwasser argue that populists critique elitist, judicial constitutionalism endorse the participation of ordinary citizens in constitutional politics. Elsewhere they claim that populism, by holding that nothing should constrain the “the will of the (pure) people”, is democratic[2], but at odds with liberal democracy, which rejects the notion of pluralism. Although they admit that populism can develop into an illiberal democracy, they also state that it is not populism but rather nativism that is the basis for excluding those who they contend are not the “real people”[3]. This understanding of populism presupposes that democracy can be liberal or illiberal (electoral), the latter having a number of institutional deficits that hinder respect for the rule of law and exhibit weaknesses in terms of independent institutions seeking the protection of fundamental rights. In fact, Carl Schmitt went so far as to claim the incompatibility of liberalism and democracy and argued that plebiscitary democracy based on the homogeneity of the nation was the only true form of democracy.
By contrast, in my view, liberalism is not merely a limit on the public power of the majority, but also a constitutive precondition for democracy, which provides for the rule of law, checks and balances, and guaranteed fundamental rights. In this respect, there is no such thing as an “illiberal democracy” or for that matter anti-liberal or non-liberal democracy. Those who perceive democracy as liberal by definition also claim that populism is inherently hostile to values associated with constitutionalism: checks and balances, constraints on the will of the majority, fundamental rights, and protections for minorities. Those skeptical about populist constitutionalism have a different understanding of populism, as a distinctly moral way to understand the political world, which necessarily involves a claim to exclusive moral representation. This means, as Jan-Werner Müller argues, that this moralistic vision of politics is not just anti-elitist, but it is also and foremost anti-pluralist. But, as Müller also claims, since democracy, which must be pluralist, is an institutionalized uncertainty, populists destroy democracy itself by promising certainty through the use of their own constitutions to make their image of the people and what they regard as the morally right policies as certain as possible[4]. Another consequence of the exclusionary moral and ideological position of populism is that it rests on an essentialist concept of citizenship, which classifies people as citizens who are members of the political community on the basis of their political and social views or their ideological commitments, as opposed to the traditional pluralist liberal concept of citizenship that rests on the place of birth, residence, or the citizenship of parents.
In my view, the populist understanding of the constitution opposes limits on the unity of power, adherence to the rule of law, and the protection of fundamental rights, as the main components of constitutionalism. The term “populist constitutionalism” seems to me to be an oxymoron altogether. The same applies to “authoritarian” or “illiberal” constitutionalism. If the main characteristic of constitutionalism is the legally limited power of the government, neither authoritarian nor illiberal polities can fulfill the requirements of constitutionalism.[5] As Mattias Kumm argues, Carl Schmitt’s interpretation of democracy, inspired by Rousseau, and used by authoritarian populist nationalists as “illiberal democracy,” becomes an anti-constitutional topos. Consequently, I equate constitutionalism with liberal democratic constitutionalism. This does not mean, however, that constitutions cannot be illiberal or authoritarian. Therefore, it is legitimate to talk about constitutions in authoritarian regimes, as Tom Ginsburg and Alberto Simpler do in their book, but I do not agree with the use of the term “authoritarian constitutionalism” or “constitutional authoritarianism”. Besides the constitutions in the Communist countries, both current theocratic and communitarian constitutions are considered as illiberal.[6] Theocratic constitutions, in contrast to modern constitutionalism, reject secular authority[7].
In communitarian constitutions, like the ones in South Korea, Singapore, and Taiwan, the well-being of the nation, the community and society receive utilitarian priority rather than the individual freedom principle of liberalism. But in these illiberal polities, just like in the current Hungarian or Polish one, there is no constitutionalism.
*The featured image is from Following the trial of Viktor Orban in Poland, he went to Brussels, Belfoldi Hirek, https://www.belfoldihirek.com/belfoldi-hirek/orban-viktor-lengyelorszagi-targyalasat-kovetoen-brusszelbe-ment-.
Gábor Halmai is a professor and chair of Comparative Constitutional Law at the European University Institute in Florence. His primary research interests are comparative constitutional law and international human rights law. His most recent book, Perspectives on Global Constitutionalism, deals with the use of foreign and international law by domestic courts (published by Eleven International Publishing in 2014). His email address is: gabor.halmai@eui.eu.
[1] See a similar description of the new East-Central European populism in a recent paper by Bojan Bugaric. See B. Bugaric, ‘The Populist at the Gates: Constitutional Democracy Under Siege?’ Public Law and the New Populism. New York University School of Law, Jean Monnet Center for International and Regional Economic Law and Justice, 2017. Bugaric claims that this anti-liberal populism is not necessarily ant-democratic. In this article I argue that it is.
[2] Also Ruth Gavison calls to celebrate populism as the ‘core of democracy rather than condemn it as anti-democratic’. She refers to Kazin’s book as a persuasive analysis of populism as an authentic political movement. See R, Gavison, ‘What Is the State of Democracy? How to Defend It?’ ICONnectblog. 26 August, 2017.
[3] Similarly, Tjitske Akkerman argues that not populism, but authoritarian nationalism, is the real threat to democracy. See T. Akkerman, ‘Authoritarian Nationalism, Not Populism Is Real Threat to Democracy’ Social Euope. 9 August, 2017.
[4] Müller distinguishes the deeply problematic populist constitutionalism from a legitimate form of popular constitutionalism. Regarding the distinction he refers to C. Brettschneider, ‘Popular Constitutionalism contra populism’. Constitutional Commentary, 2015
[5] In the legal scholarship, Stephen Holmes asserts that the minimalist vision of constitutionalism is achieved if the following requirements are met: the constitution emanates from a political decision and is a set of legal norms; the purpose is “to regulate the establishment and the exercise of public power”; comprehensive regulation; constitutional is higher law; constitutional law finds its origin in the people. (Holmes, 2012)
[6] L. Thio, (2012). Constitutionalism in Illiberal Polities. In M. Rosenfeld, & A. Sajó, Oxford Handbook of Comparative Constitutional Law, Oxford University Press, 2012. 133-152. Contrary to my understanding, Thio also talks about ’constiutionalism’ in illiberal polities.
[7] There are two subcategories distinguished here: the Iranian, where Islam is granted an authoritative central role within the bounds of a constitution; and the Saudi Arabian, where Islam is present, without the formal authority of modern constitutionalism.
